Perhaps because author agreements last a long time, many publishers use the same standard contract for a long period. Many years may pass by between comprehensive contract reviews.
If you are a publisher, and your contracts are starting to look a little archaic, then this post should help you. It highlights some of the key developments of the last decade that affect publishing contracts, with a particular focus on author agreements.
Contracts drafted circa 2002 should of course include provision for electronic rights, where appropriate. However, even where electronic rights are covered, you need to look closely at the drafting.
Whilst the basic form of the ebook has not changed, the popularity of the format has exploded. I remember writing a journal article perhaps 7 years ago, wondering whether the ebook had finally come of age. It certainly has now.
If the basic form hasn’t changed, the methods of distribution have. Amazon’s Kindle, for example, is immensely popular. The Guardian reported last May that Amazon was selling more ebooks than printed books.
You should check that the grant of electronic rights is appropriate for current distribution methods, covering for instance the right to sell through Amazon, iBook et al – whether on an agency or reseller basis. Where the agency model may be used, contracts should include specific provision for the deduction of commission by the agent (assuming the agency model survives the current competition authority investigations).
Usually, publishers will want to be able to sub-license ebook rights, especially to foreign language publishers.
Audiobooks: digital downloads
Like the ebook market, the market for audiobooks in the form of digital downloads has come alive over the last decade. Many older publishing contracts didn’t cover digital downloads of audiobooks in an appropriate way. If relevant, check that yours do.
Other forms of digital exploitation
Most of the bigger publishers have experimented with enhanced ebooks and apps (ie ebooks with additional content), although with mixed success.
As publisher, you will need to decide whether to acquire the right to produce enhanced ebooks and apps upfront. This can be difficult, not least because of uncertainty about what the end product will look like – although sometimes this difficulty can be dealt with using author consultation and consent provisions.
Educational publishers, in particular, will need to think about other forms of electronic exploitation, such as online subscription services.
Privacy and the right to a private life
Over the last decade, the right to a private life under the European Convention on Human Rights has become an entrenched part of English law. Accordingly, you should ensure that the warranties (and indemnities, where applicable) from the author mention privacy rights.
UK publishers have increasingly found that overseas publishers, notably in the US, are asking for warranties and indemnities that are more stringent than those that UK publishers ask from their authors.
This has led to – or at least has been consistent with – a generally stricter and more commercial approach to contract development than previously prevailed. Commercial lawyers are usually surprised at the way publishers’ contracts protect authors rights. This issue is obviously related to the minimum terms agreements that some publishers have signed up to. In any event, you might find that your old contracts are more generous to authors than is perhaps necessary.
Limitations of liability
One aspect of the stricter approach has been the introduction of limitations of liability protecting publishers in some author agreements. Limitations of liability clauses exclude, or purport to exclude, selected categories of loss from recoverability. Categories of loss that might be covered by a limitation of liability in an author contract include reputational damage, loss of opportunity and loss of data. In addition, liability may be capped at a particular level.
Authors’ websites and beyond
Many authors have their own websites, often beyond the control of their publishers. Where authors want the right to publish extracts and artwork on their websites, this should be provided for in the contract.
Similarly, authors will increasingly be asking for the right to use/exploit their work through other forms of digital media (such as mobile apps). Will this be allowed? Can the author produce his or her own app using material from the book?
Competing works clauses should be reviewed with this and other non-print exploitation in mind.
TV/Film rights and digital exploitation
Television companies and film-makers will often require ancillary digital rights for marketing and related purposes. Ensure where appropriate that you can grant these without going back to the author.
Many publishing contracts include obligations on the author to undertake marketing activities. The obligations may be general in nature, or specific. In some areas of publishing, authors’ social media activities may form an integral part of the overall marketing strategy. In such cases, you should consider placing specific obligations on authors.
Illustrations and photos
Ensure that the grant of rights in relation to illustrations and photographs used in the work is sufficient to cover all the intended and possible forms of electronic exploitation.
In the past, some publishing agreements were silent on the question of what the publisher can use and where. For instance, can extracts and illustrations from a book be used in marketing materials? What about the author’s biography and photograph? And what forms of marketing materials?
Publishers producing short films for marketing purposes will need to ensure that their rights are consistent with any grants of TV/film rights.
If you’re conducting or thinking of renewing your publishing contracts, and you have any questions about the process, please post them below, on our Q&A, or if you prefer you are welcome to contact me directly.